When someone makes a Will, they need to understand the contents of the document and give their approval. If this is not the case, then after their death it may be possible to challenge the Will and ask the courts to declare it invalid.
In signing a Will, it is crucial that the person making the Will, known as the testator, does so freely and knows what it is that they are signing. Where this is not the case, disputes can arise after a death and a Will may be contested.
When is a Will invalid?
There are several grounds on which a Will could be declared invalid, including:
- It has not been correctly signed and witnessed
- The testator did not have sufficient mental capacity when they signed
- The Will has been altered
- An attempt has been made to destroy the Will
- The testator was unduly influenced by someone to make the Will in the terms that they did
- The testator had a lack of knowledge and approval of the Will
What is want of knowledge and approval of a Will?
It is generally assumed that a testator will know and approve the contents of their Will. However, in some circumstances suspicions may arise. For example, if someone else has been instrumental in helping the deceased change their Will and has taken over the process, you may be concerned that either the testator did not fully understand what was in the Will or that they were unduly influenced into making a Will in someone’s favour.
This can be a particular concern if the testator is frail or has limited eyesight and has relied on others to prepare and explain the Will for them.
Where a solicitor has been used, precautions are usually taken, and if there are suspicions, their file can be requested to check what safeguards were used. However, if a homemade Will is signed, then there may be concerns over the testator’s understanding of the document.
What does the court look for in assessing knowledge and approval?
If the court is asked to decide whether a testator had knowledge and approval of the contents of their Will, it will generally apply the test set out in the case of Barry v Butlin (1938).
If there were no suspicious circumstances and the testator had mental capacity, then it will be presumed that they knew and approved the contents of their Will.
However, if a Will is drafted in a way that should ‘excite the suspicion of the court’, then the Will should not be approved unless the suspicion can be removed.
It is for the person seeking to prove the Will to the Probate Registry to show that the testator knew and approved of their Will. They will need to put forward evidence supporting their claim.
In the case of Hawes v Burgess (2013), a Will was found to be invalid because of a lack of knowledge and approval. The testator’s daughter had been the one to arrange for her mother to have a new Will. As well as making all of the arrangements, the daughter had been present during the meeting prior to the drafting of the Will and had spoken for her mother in answering many of the questions.
The mother was not given a draft Will to view before she signed it.
The new Will was a surprise, in that one of the testator’s children was disinherited, despite being on good terms with the mother.
The court found that its suspicion was excited over the circumstances of the making and signing of the Will and the appellant had not been able to provide evidence to show that the mother did in fact have knowledge and approval of the contents of the Will. The Will was therefore held to be invalid.
Challenging a Will
If you are concerned that a Will may be invalid because the testator did not know what it contained or did not approve it, you should speak to an expert contentious probate solicitor as soon as possible. It is important to act quickly to prevent the estate from being distributed before you can make a legal claim.